Upholding Contractual Integrity: Sasol vs Murray & Roberts

08 September 2023

Supreme Court of Appeal judgment offered clarity on construction contract interpretations, setting precedents for future adjudication processes.

In an important 2021 ruling, South Africa’s Supreme Court of Appeal (SCA) illuminated key aspects of contract law, emphasising the sanctity of due process and the binding nature of adjudication decisions. This pivotal judgment arose from a dispute between Sasol and Murray & Roberts.

The origins of the dispute can be traced to a contract where Murray & Roberts were commissioned for engineering and construction services at Sasol’s Secunda plant. Embedded within the contract were prescribed guidelines for a Project Manager (PM) and provisions for dispute resolution under Option W1 of the NEC3 Engineering and Construction Contract.

Problems bubbled to the surface over payment claims by Murray & Roberts based on the PM’s assessments. Two of the ten disputes, rooted in these assessments, underwent adjudication and subsequently arbitration. The arbitration favoured Murray & Roberts, prompting the PM to reassess the payments for all ten disputes. The PM, however, selectively implemented the arbitral award, leading to further contention in adjudication (Dispute 16).

In dispute 16 the adjudicator again found in Murray & Roberts’ favour which prompted Sasol to seek a review of the adjudicator’s decision by the High Court. Their primary contention was the adjudicator’s revisiting of previously determined disputes and raising questions about the timing and validity of the adjudicator’s decisions. However, the High Court, and later the SCA, disagreed with Sasol’s perspective.

Delving deep into the intricacies of the contract, the SCA deduced that the PM was obligated to heed the arbitrator’s findings. It found that the adjudicator acted well within the contract’s parameters and highlighted clauses that permitted both parties to provide further information for up to four weeks after the dispute’s referral. It was also established that the adjudicator was entitled to request and receive additional information, after which a four-week period for his decision would commence.

The ruling underscores that should doubts arise regarding the validity of an adjudicator’s decision, it must be addressed through proper channels. Simply put, unilateral non-compliance based on personal perceptions of validity, without following due process, is not permissible.

This decision has important implications:

Clarification on Contractual Provisions: The judgment provided greater clarity on the interpretation and application of clauses in construction contracts, especially when juxtaposed with an adjudicator’s contract. It prompts future contracts to possibly have more definitive phrasing to sidestep such disagreements.

Adjudication process insight: This case has shone a light on the adjudication process, notably regarding timelines. It advocates for a more meticulous detailing of timelines in contracts to ensure mutual understanding.

Affirmation of the binding nature of Adjudication: The judgment reiterated that an adjudicator’s decision remains binding unless overturned by a tribunal. This solidifies the importance of the adjudication process in contractual disputes.

Moving forward, stakeholders spanning construction firms, energy corporations, and legal teams must scrutinise their contracts with this judgment in mind. The hope is for more unambiguous contracts and a streamlined adjudication process in the future whereby disputes are reduced allowing focus on progress and development.

By Gerard van Beek | Associate

Tiefenthaler Africa successfully represented Murray & Roberts in this matter.

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